The publication of the Bar Council’s report on Bullying, Harassment and Discrimination at the Bar this month paints a bleak picture: 44% of barristers reported experience of bullying, harassment, or discrimination in the past two years, and 59% of those confirmed that it took place at court.
Four in ten women (41%) had experienced it, more than twice the proportion of men (19%), as had 43% of barristers from ethnic minority backgrounds, compared with 27% of white barristers. That figure rose to 52% of female barristers from ethnic minority backgrounds, compared with 17% of white men. Ridicule, demeaning language and misuse of power or position were most notable at the criminal and family Bars.
Bullying, harassment, and discrimination are unacceptable in any professional environment, but particularly in our criminal courts. The criminal Bar currently has a reduced workforce, managing an increased, stressful workload. The Bar Council’s data, published in April 2022, revealed that the number of barristers practising full-time in publicly funded criminal law had declined by more than 10% in 2020/2021, reducing from 2,670 in 2019/2020 to 2,400 in 2020/2021.
Criminal barristers have recently reported significantly lower overall wellbeing than all other practice areas, with just under 50% reporting that they felt down or in low spirits, and only 40% reporting they found their workload manageable, according to the Bar Council’s Barristers' Working Lives report 2021. These behaviours adversely affect working lives, recruitment and retention and undermine the integrity of our wider criminal justice system that we work so hard to protect.
That is not to say every ill-tempered word or expressed irritation amounts to bullying, harassment and discrimination - the definitions are clearly set out in the Bar Council’s report - but members of the criminal Bar and judiciary would do well to reflect on their conduct, its impact on others, and whether it meets the high standards of behaviour expected of our profession.
If any member of the criminal Bar is subject to bullying, harassment or discrimination, this should be reported using the Bar Council’s Talk to Spot. This is a confidential way of reporting something that causes concern which, even if logged anonymously, will be monitored by the Bar Council to see if a pattern of behaviour requires action.
History
In the 6th century, the Church permitted representation of distressed persons in ecclesiastical proceedings. An ‘advocatus’ was not to resort to dishonest, disreputable, or dishonourable practices; they must treat the court, the officers of the court, the adverse party, and the opposing lawyer with utmost courtesy. Treating people with courtesy and respect within the criminal justice system is the bare minimum standard of behaviour to be expected.
According to the jurist, philosopher and historian Anton Hermann Chroust, by the 13th century the legal training of apprentices (junior barristers) in a collegiate atmosphere (later the Inns of Court) “nurtured professional standards which subsequently made the English legal profession a truly noble calling and produced a professional mentality as well as an attitude which in the years to come would make the English legal profession the zealous promoters and faithful guardians of the English common law and of the ‘immemorial rights of an Englishman’”.
This collegiate atmosphere developed after a period of poor conduct by lawyers in the 11th century complained of in the Leges Henrici Primi (Laws of Henry I): “…officers of the law…were fiercer than thieves and robbers and desperate oppressors”.
In the 12th and 13th centuries, corrupt lawyers were criticised by John of Salisbury, the clerk and secretary to the Archbishop of Canterbury, Thomas Becket. He wrote:
“When assigned by the court to represent a litigant, the lawyer must comply under pain of disbarment, must act in good faith, and protect the interests of his client with utmost diligence. He may never use trickery or chicanery, nor negotiate with the opposing lawyer. Neither should he ‘bully’ the opponent or mislead the court by false statements.”
The First Statute of Westminster in 1275 established disciplinary provisions for malpractice with penalties in chapter 29, including the ability to imprison lawyers for misconduct and prohibition on ever appearing in court again. The Mirror of Justices, a law textbook composed between 1285 and 1290, directed that a serjeant, the earliest senior barrister, “will not by blow, contumely, brawl, threat, noise or vile conduct disturb any judge, party, serjeant or other persons in court, or impede the hearing or the course of justice.”
From the beginning of the 15th century, the Inns of Court provided training for junior barristers or apprentices and became responsible for “Calling” them to the Bar. Today the four Inns of Court, Lincoln’s, Gray’s, Inner and Middle Temple are responsible for ensuring training has been completed and conducting “fit and proper person checks”. Training through the post-graduate Bar Training Course includes vocational training of which a part is ethics, standards and values training.
According to the Attorney General in 1851: “the business of the advocate in all our courts, superior or inferior, should be conducted by men of trained education as advocates, of established position as gentlemen, as men of honour.”
The right of the Inns of Court to Call to the Bar continues although the regulation and discipline of barristers was transferred from the Inns to the General Council of the Bar (created in 1894) and then to the Bar Standards Board (BSB) from 2006.
At the turn of the 21st century, criticism re-emerged of too many unethical lawyers with the quality of practitioners not being universally high. In 2001, the Office of Fair Trading produced a report on 'Competition in Professions' which recommended the restrictions on competition be removed. It was concluded that “the current framework was outdated and insufficiently transparent… client complaints about lawyers were not being dealt with efficiently” and lawyers were “marking their own homework”.
In 2003 Sir David Clementi, accountant, chairman of Prudential PLC and deputy governor of the Bank of England, conducted an independent review. His report in 2004 broadly became the Legal Services Act 2007. The 2007 Act for the first time defined “barrister” as an individual who had been Called to the Bar by an Inn of Court and who was not disbarred.
There were eight statutory regulatory objectives for legal services regulation which included: protecting and promoting the public interest, supporting the constitutional principle of the rule of law, encouraging an independent and strong legal profession, and promoting and maintaining adherence to a number of professional principles.
The professional principles include acting with independence and integrity, complying with the duty to the court to act with independence in the interests of justice, acting in the best interests of clients, keeping clients’ affairs confidential, and maintaining proper standards of work.
Criminal barristers’ role
The law provides the mechanism for deciding where legal right and wrong is, “by the clash of competing evidence and argument, it is believed, the judge (or jury) is best enabled to decide what happened". It has been this way for centuries. The task of the criminal barrister in court is therefore to be argumentative, persistent, bold and to endeavour to be as persuasive as possible on behalf of whichever side they represent.
The criminal advocate uses his or her brain and voice to advance their case, and compete for the tribunal’s attention and favour in an adversarial system that was famously courteous and amicable. But relationships between counsel and the court may be strained when all sides are under pressure of time, which is undoubtedly the case now.
Hostility from the court is nothing new: “It may require more courage to represent a client in the face of a hostile court, but the advocate must still be prepared to act fearlessly. It is part of the duty of an advocate, where necessary, appropriately to protect his client from the court as well as from the opposing party.”
Thomas Erskine, defence counsel for Thomas Paine in 1792, exemplified the role of the barrister, saying “I will forever, at all hazards assert the dignity, independence and integrity of the English Bar, without which impartial justice, the most valuable part of the English Constitution, can have no existence."
In Bolton v The Law Society (1994), Sir Thomas Bingham gave the guiding principles on the role of the criminal barrister: “It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness...”
In Newell-Austin v Solicitors Regulation Authority (2017) Morris J derived the following principle from the authorities: “Integrity connotes moral soundness, rectitude and steady adherence to an ethical code: see Scott §§38 and 59, both citing Hoodless §19.”
Sir Brian Leveson P said: “Professional standards …rightly impose on those who aspire to them a higher obligation to demonstrate integrity in all of their work.”
Jackson LJ said in Wingate & Evans & Malins v Solicitors Regulation Authority that: “In professional codes of conduct, the term ‘integrity’ is a shorthand… to express the higher standards which society expects from professional people and which the professions expect from their own members. The underlying rationale is that the professions have a privileged and trusted role in society. In return they are required to live up to their own professional standards.”
Criminal barristers are not required to be - and indeed are not - always paragons of virtue, but integrity is demonstrated by adherence to the ethical standards set out in the Bar Code of Conduct, and in the manner in which barristers speak both in court and to each other.
Barristers’ regulation and behaviour
In England and Wales, barristers must, if they wish to practise, abide by the Bar Code of Conduct. The Core Duties of barristers and rules of conduct are contained in the Bar Standards Board Handbook in Part 2: Code of Conduct, which includes:
- CD3: You must act with honesty and with integrity, and
- CD5: You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.
- Rule C8 specifies: “You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4)”. That rule and the associated guidance (gC14-gC25) applies at all times and not merely when practising as a barrister or providing legal services.
The Bar Council definition is: “as a matter of ordinary language, integrity, although a somewhat nebulous word, engages (we think) notions of truthfulness, trustworthiness, moral consistency and self-reliance in moral judgment, and compliance with the criminal law…”
In the case of Ekareib v R (2015) the Court of Appeal expressed concern “that the practice of making personal criticism of prosecution advocates has become a feature of some addresses to the jury made by defence advocates," which, they said, was a development “which judges must ensure ceases immediately and not be repeated in any case".
In R v Early & Others (2002) it was said that “the integrity of our system of criminal justice depends on judges being able to rely on what they are told by counsel and on counsel being able to rely on what they are told by each other…”
Conclusion
According to the United Nations, “a judicial system which operates without regard to professional ethics standards is not able to build and retain public trust in the fairness and objectivity of its decisions and outcomes.”
“Integrity” is defined as “the ability to resist corruption, fully respecting the core values of independence, impartiality, personal integrity, propriety, equality, competence and diligence.” There can be no doubt that the behaviours we are talking about do not demonstrate integrity, propriety and equality.
We must remain vigilant and ensure that integrity is at the heart of our profession, calling out bullying, harassment, or discrimination wherever it shows itself, whichever side of the Bar or Bench one is sitting. Integrity matters and barristers’ integrity matters; the proper functioning of our criminal courts and our criminal justice system depends upon it.